Export control is at the crossroads of technology, regulation, and geopolitics. In order to secure the predictability of operations, the consideration of these different parameters is crucial.
Export control overview
The practice of export control has essentially been built up empirically. To date, there is no specific university training on this subject in France. As this is a matter of great strategic importance in terms of sovereignty, it is possible that two States do not adopt a common approach for the same product or technology. In the same way, it is not impossible that two companies within the same State apply a different regime for an identical product. Moreover, the laws sometimes leave room for subjectivity concerning certain principles or concepts such as “specially designed”. In addition, the reasoning of each sector of activity is different. All in all, these elements contribute to the development of various schools of thought or doctrines, particularly regarding classification.
The coming into force of the Wassenaar Arrangement in 1996 marked a decisive turning point in export control practice. One of the objectives of this text was to list the products and technologies that should be controlled. The list established by the Wassenaar Arrangement is regularly updated in line with technological advances. However, although the Wassenaar Arrangement has made it possible to establish a set of common principles, each signatory State remains free to implement its export control policy and has the option of unilaterally adding to the list of products and technologies. It should be noted that the European Regulation 2021/821 as well as French law were based on this list.
The American ITAR and EAR rules – regularly highlighted in the press – differ on certain points but adopt a similar logic to the principles of the Wassenaar Arrangement signed by the United States. The renown of these two regulations is due more to the so-called extraterritorial scope of the US rules and the sanctions that the authorities apply in terms of export control. Indeed, these regulations can seriously disrupt or even compromise the operations of non-US companies. Nevertheless, the use of American solutions or technologies should not be excluded. The choice of an American solution must first and foremost be reasoned and informed so as not to expose the company unnecessarily.
Finally, recent years have seen the emergence of export control regulations in countries that are not signatories to the Wassenaar Arrangement, such as China and Morocco.